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Saturday, November 18, 2006

Request for reader assistance: What do you know about these potential 5th Circuit nominees?

After noting bloggerly speculation about who Bush would appoint to fill vacancies on the federal 5th Circuit Court of Appeals, I'd like to request a little help from Grits readers. Find below the list of possible picks for two vacant Texas seats on the Fifth Circuit Court of Appeals (which covers Texas, Louisiana and Mississippi) according to David Lat from Above the Law. The four he deems most likely are:

I don't know anything about any of these people save for snippets about Jefferson and Cruz, but I suspect some Grits readers might. So tell me: What do readers know about these potential 5th Circuit picks from Texas that Senate Democrats ought to consider in their deliberations? (Attorneys feel free to use the anonymous comments function on this one if you're afraid of revealing dope on judges before whom you practice, but citations are always nice!)

Just to get the ball rolling, Lat says Fitzwater may have trouble with Dems because of a political incident from his youth that made national headlines, where he distributed flyers aimed at suppressing voter turnout in predominantly black South Dallas neighborhoods.

Sid Fitzwater was questioned about the alleged voter intimidation during his confirmation hearing, where he apologized, saying he "did not study the signs and drew no conclusions from the fact that he was asked to place them only in Black areas of South Dallas."

Yes, I suspect that might give some Democrats pause! Hard to believe that fellow made it through the confirmation hearings the first time, huh?

So tell me readers, what else do you got? I don't just mean scandals - how would they be on the 4th Amendment, on reproductive rights cases, on the death penalty cases where the 5th Circuit and the Texas CCA keep getting bench slapped by the Supremes? What kind of lifetime federal appellate judges would these people make?

Come on ... I've been around lawyers my whole life and I know attorneys LOVE to gossip. Use the comments, anonymously if you like, and let me know what you know about these judges, or email me if you prefer.

20 comments:

I was in front of Judge Godbey when he was on the state bench in Dallas on a fairly complicated case involving the intersection between family and civil law, limitations and jurisdiction. Although he ruled against me on a motion for summary judgment, I found him to be very intelligent, respectful, courteous (He even personally encouraged me to appeal, on the record, because he recognized it was an issue of first impression and needed to be settled) and thoughtful. Unlike many judges, I could tell from his questions that he had actually bothered to read the pleadings, the motions and my bench briefs. I haven't been in front of him since he went fed, but if my experience was typical, then he's a damn good judge.

Gregory Coleman clerked for Clarence Thomas, which is a little scary, but interestingly, he said the following about the Defense of Marriage Act, testifying in 2003:

"As things currently stand, given the outcomes and rationales in Romer and Lawrence, it is likely, though not inevitable, that DOMA itself and prohibitions on same-sex marriage more generally will be held to be unconstitutional in the relatively near future. Those decision provide the necessary background principles for such a holding, and the courts need not establish any additional concepts before reaching that conclusion. And while that future result is not ineluctable, current trends point strongly in that direction, and it is my professional opinion that, in the absence of some intervening event, the Supreme Court's evolving standards of liberty and privacy will result in constitutional protection for same-sex marriages within the next five to fifteen years."

That doesn't mean HE endorses overturning DOMA, mind you, but it gives a sense of how he might read court precedents if he were a judge. On the other hand, he might have been giving the right wing fodder to whip up the base to think they needed to defend DOMA. Who knows? I thought the quote was interesting.

A reader who'd rather remain anonymous emails to call Greg Coleman a "maniacal Mormon" and one or two names I won't repeat in a family setting. This writer said Coleman "is the person who single handedly initiated the current challenge to the Voting Rights Act" being fought by TX civil rights groups. A quick Google showed that's true, see this Statesman article.

Another Grits reader who's a practicing appellate attorney and who'd thus prefer anonymity emailed with comments; here are some highlights:

"Rosenthal is a magistrate judge in Houston. She handled the federal habeas in Penry II, and was one of the judges that got reversed in that case."

"Judge Fitzwater ... is, without a doubt, the most evenhanded judge I have ever appeared before."

Penry II is one of the cases where the US Supreme Court has "bench-slapped" the 5th Circuit and the Texas Court of Criminal Appeals, so that would make one fear that Judge Rosenthal wouldn't help 5th Circuit's unhappy reputation in that regard.

Good stuff. What else do you got, folks? Especially you lawyers, let me know what you think, in the comments or by email.

More from the email box from a reader who prefers anonymity. I'm excerpting to remove anything that might identify the author:

"Hanks is a lousy justice."

"Greg Coleman - was Cornyn's solicitor general and is very close to him - he is conservative but honest."

"Fitzwater has been a Dist Judge about 20 years. He was a Reagan appointee. Although conservative, he has excellent judicial temperament, integrity, is very bright and careful. He would make a fine appellate judge but would not move the 5th Circuit back toward the middle. He is not an ideologue so may be more respectful of Supreme Court precedent."

"Godbey is a relatively new US District judge, appointed by the current President, who came from the state civil bench. He is Harvard educated and very bright. He is also conservative with a good judicial temperament, integrity and respect for precedent. He would make a good appellate judge, but would probably not move the 5th Circuit toward the middle. I don't perceive him as an ideologue."

"Boyle was a state, then federal prosecutor, then Magistrate Judge, then US Attorney, and recently appointed US District Judge by President Bush. Her husband is a criminal defense attorney. She does not have the intellectual reputation that Fitzwater and Godbey have. My dealings with her have always been pleasant and professional. ... but I think she needs more seasoning as a judge before being considered for the 5th Circuit."

Thanks commenters! Any other first hand accounts? Let me know! I've got to tell you, for me, "probably not move the 5th Circuit toward the middle" isn't good enough. Democrats on the judiciary committee need to ensure that court moderates significantly, IMO.

"Greg Coleman is a member of the Texas Board of Criminal Justice and is chair of their Legal Committee. ... I gather (apart from work) that he is a big-wig in his church and I suspect that his clerkships might be scary to you and many of your readers. However, I don't think there's any doubt about his qualifications and temperament. ... I do think it's interesting that he has some hands on experience with the Texas Criminal Justice System."

Another factor to throw in the mix: Dallas has a lot of soon-to-be-unemployed judges -- some of whom are very well respected and moderate. David Evans and David Kelton both have the wattage to do the job and could muster substantial support from Democrats and even (gasp!) trial lawyers.

Received several more emails from lawyers who didn't want to be identified or in some cases even anonymously quoted. Here's the gist:

Several readers identified Rosenthal, Godbey and Boyle as exceptional, fair, and qualified judges. One said that Godbey had ruled against a challenge to Roe v. Wade in his court, but noted that "you don’t get to reopen a finally decided case 30 years later because you got religion and changed your mind! He’s very intellectually honest."

One reader feared losing Judge Rosenthal or Judge Elrod as trial judges, and suggested Rosenthal deserved a 5th Circuit appointment and Elrod should fill her federal district court slot.

Yet another attorney said Ted Cruz is an "total f'ing idiot, but then you probably already knew that." :) Actually someone told me once he was "smart." I really don't know the guy.

Two email commenters disapproved of Justice Jane Bland's possible nomination, and both had essentially the same complaint: She seemed to have her mind made up how she would rule before parties ever submitted briefs or made arguments.

Again, I'm just summarizing anonymously from various emails (in one case which I promised to delete! - you lawyers are a bunch of nervous nellies!). I don't know these folks and the opinions above about these judges aren't mine. I'm interested in hearing more of yours, though. Best,

Jane Bland's background can be found on the website for the First Court of Appeals. She's young and has ridden the Bush-Perry appointments ladder fairly quickly to her current position.

I appeared before her once on a hearing shortly after she was first appointed as a district judge. The hearing was over some minor issue, but to her credit, she was already familiar with the case and had no problem grasping the issues under discussion.

She seems to be fairly well-regarded in the Houston Bar Association Judicial Evaluation Poll, scoring higher than all other justices on the First and Fourteenth Court of Appeals.

Chief Justice Wallace Jefferson is smart and would do less damage on the Fifth Circuit than on the Texas Supreme Court (he would show more constitutional respect on the criminal cases than the civil cases but his current position does not focus on the criminal cases).

While Fitzwater has been on the bench long enough for everyone to evaluate his opinons over the years, a little known fact is that his sister is Martha Fitzwater White, a lesbian activist and liberal Democrat who was an Ann Richards appointee to the the State Mortunary Board. This may or may not account for the impression that one can glean from his opinions that he's no knee-jerk reactionary on the social issues. I agree with those who view him as an Establishment Conservative whose background at V&E and whose appointment by Ronald Reagan are his lodestars. Maybe he can be pegged as somewhere between Roberts and Kennedy.

The 5th Circuit criticized Texas' "overly broad criminalization of conduct intended to assist disabled voters and its resulting disqualification of disabled voters," but said the harm was speculative until after the election. A very political ruling - they agreed with the Dems, but wait till the damage is done before enforcing the Constitution. Shocking, huh?

"I have appeared before Elrod a few times. She is smart and fair. I don't know anything about her political background (other than that she is an R). Given who makes the appointments, we could do a lot worse.

"As for Cruz, he got his position, actually the new position, as Solicitor General after his management of the legal case in the 2000 Florida recount. 'Nuff said."

"Justice Hanks was an adjunct for the trial advocacy class at UH this semester. I think he's a good guy who cares a lot about legal education, but I don't know a whole lot about his views on legal issues. At any rate, he's one of the few incumbent Republican judges that I voted for. I'd find it very hard to oppose him, and I would probably pull my hair out if he got ruffed up by the Senate."

Lee Rosenthal is the smartest judge I've ever encountered. She is eminently fair to all parties in her courtroom and does not approach cases with an ideological bent. She consistently is the highest rated judge -- federal or state -- in the HBA attorney poll. She would be an excellent choice for the Fifth Circuit slot.

In response to a prior comment - Rosenthal is a district judge, not a magistrate judge. And in the Penry case, she was following established Fifth Circuit precedent, as she was bound to do.

Rosenthal, Young, Godbey, Coleman, and Cruz would be fantastic circuit court judges. Those who say otherwise have a political axe to grind, and don't know anything about the legal issues involved. The others are solid individuals and lawyers, but not on the same level. Rumor has it that Cruz is more interested in elective politics. If I were making the choices (and I'm not), I'd go with Rosenthal, Young, and Godbey, in that order.

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